Monday, June 02, 2014

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding those subject to any foreign power and Indians not taxed."

C

ommentary:

Our decennial census should not count any persons subject to some foreign power, especially unlawfully-present aliens. American sovereignty demands that their representatives be seated at the negotiating table rather than in Congress. That is, both their interests and ours are best served through international diplomacy, not federal legislation. Although it would seem Congress has power to exclude such persons from the count, it refuses to fully exercise that power. Likely that refusal is based on apprehensions regarding the constitutionality of a restricted count. If so, a reading of Patrick J. Charles' article "Representation Without Documentation?: Unlawfully Present Aliens, Apportionment, the Doctrine of Allegiance, and the Law" (Brigham Young University Journal of Public Law, Vol. 25, pg. 35, 2010) might lessen those apprehensions. As he explains it,

It is a hard sell to assert that aliens who fail to comply with the federal immigration laws fully submit themselves to the law. According to the tenets of the doctrine of allegiance, this failure to submit is a legal condition by which Congress could effectively exclude unlawfully present aliens from apportionment. To elaborate, an alien's failure to submit to the laws and declare his or her intent to lawfully settle makes that individual still a subject of the foreign jurisdiction from which he or she came, not the United States. To come to any other interpretation conflicts with the well-established plenary authority of the United States government to exclude and expel aliens—a power that is inherent with every sovereign nation through the right of self-preservation.

It should be emphasized that the right to be represented is a political right, not a natural or civil right. The distinction is significant because it was understood by the Founding Fathers that international law grants nations the sovereign authority to restrict or exclude aliens from political rights, including rights such as voting and bearing arms. There is no disputing that the Founding Fathers and the framers of the Fourteenth Amendment intended to grant lawful aliens the political right of apportionment. This is why the census has traditionally included foreigners, residing with the intent to become citizens, in the apportionment base. All other alien classifications, however, could be denied this political right should Congress enact legislation to that effect.

In light of the limited number of total House seats available, it is unreasonable to think an apportionment process that allows states with the largest populations of unlawfully-present aliens to take undue advantage of all the other sovereign states can ever be just, fair, or equitable. Therefore, instead of leaving this matter to any concurrent discretion of Congress and the other two branches, the above amendment would expressly effect a process that more properly protects the sovereignty of not only our nation but every one of our states.